McJimsey v. Yates

• Decision Date: 05 May 1959
• Docket Number: No. 7105,7105
• Citation: 324 S.W.2d 438
• Parties: J. D. McJIMSEY et al., Appellants, v. George T. YATES et al., Appellees.
• Court: Texas Court of Appeals

Page 438

324 S.W.2d 438

J. D. McJIMSEY et al., Appellants, v. George T. YATES et al., Appellees.

No. 7105.

Court of Civil Appeals of Texas, Texarkana.

May 5, 1959.

Rehearing Denied June 2, 1959.

LeRoy LaSalle, Carthage, for appellant.

J. E. Jackson, Carthage, for appellee.

DAVIS, Justice.

The opinions heretofore handed down in this case on February 17, 1959, and March 17, 1959, are withdrawn, and the following is here substituted therefor.

Contestants-appellees, George T. Yates, Charles Shell, W. P. Barnett, Sr., W. P. Barnett, Jr., Carl Beason and George Charles Tiller, filed suit against the County Attorney, County Judge and the Commissioners' Court in the District Court of Panola County, Texas, to contest a school consolidation election held in Panola County on April 5, 1958, on the issue of whether or not DeBerry Rural High School District No. 703 of Panola County, Texas, should be consolidated with the Elysian Fields Independent School District of Harrison and Panola Counties. Appellants-interveners, J. D. McJimsey and G. E. Lawless, intervened. Although the Elysian Fields Independent School District is situated in both Harrison and Panola Counties, the actual site of the school is in Harrison County. Elysian Fields Independent School District way not made a party to the contest and the record does not show whether or not the election was for or against consolidation in that district. There is a serious question in our minds as to the validity of the contest from the standpoint of necessary parties. It seems that if Elysian Fields had enough interest to hold an election in its district, it should have been given an opportunity to held uphold the election to protect its efforts and expenses in holding the election.

There is a conflict of authorities as to who has a right to maintain an election contest in such cases as we have before us. Some cases hold that a person contesting such an election must have a justiciable interest. See 15-B Tex.Jur. 555, Sec. 68, and authorities therein cited. In De Shazo v. Webb, Tex.Civ.App., 109 S.W.2d 264, 266, certified question answered, 131 Tex. 108, 113 S.W.2d 519, it was held that any resident citizen of a school district could contest such an election and he need have no greater right than that of a voter. This was based upon the phrase of the statute (Art. 3069, R.C.A., now Art. 9.30, Election Code V.A.T.S.,): '* * * any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county. * * *' It overlooks the phrase in said statute immediately following the one just quoted which reads as follows: 'in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for county office.' If that part of the Election Code means what it says, then the person contesting such election must not only be a resident of the place where the election was held which he seeks to contest, but, also, he must come under the same rules for contesting the validity of an election for a county office, which rules are well established that a party contesting an election for county office must have a justiciable interest.

It appears that under Article 9.30, Vernon's Ann.Texas Election Code, a person must have a justiciable interest in the matter before he is eligible to maintain such an election contest. Such is the holding in the cases of McFarlane v. Westley, Tex.Civ.App., 186 S.W. 261, error dism.; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Massay v. Studer, Tex.Civ.App., 11 S.W.2d 227, n. w. h.; and City of Goose Creek v. Hunnicutt, Tex.Com.App., 118 Tex. 326, 15 S.W.2d 227, opinion adopted and approved by Sup.Ct.

In the case of Owens v. Barham, Tex.Civ.App., 145 S.W.2d 937, n. w. h., it was held that contestants were qualified to maintain an election contest where it was alleged and proved at the time of the election that the contestants were legally qualified, resident, tax-paying voters of the district and the consolidation would increase the tax burden and inconvenience their children. This authority follows the rule that a justiciable interest must be shown.

It was held in Doherty v. King, Tex.Civ.App., 183 S.W.2d 1004, wr. dis., citing Tate v. Farmer, Tex.Civ.App., 112 S.W.2d 782, 784, n. w. h., that the majority of the members of the board of trustees could maintain an election contest on the question of consolidation because such school districts were made a body politic by Article 2748, R.C.A. But the court went on to say in Tate v. Farmer, supra, that '* * * others who joined with them as taxpayers and citizens did not have the right to contest the election for lack of justiciable interest therein, separate from the interest of the public; * * *' Although in this case one contestant is a trustee, he does not comprise a majority of the board and cannot not act for the school district.

The trial court sustained the contest and the interveners have appealed.

Appellants have brought forward 10 points of error complaining of the action of the trial court. The 10th point complains of the action of the trial court in holding that the ballot and stub boxes should be opened and the ballots be recounted because contestants had failed to establish by competent and material evidence that there had been sufficient illegal votes cast to alter the results of the election. In the other points, appellants complain of the action of the trial court in finding certain other voters disqualified and that such findings were against the great...